Monday, August 22, 2005

The Right Wing Constitutional Lawyer/Plagiarist

“John W. Whitehead is an attorney and author who has written, debated and practiced widely in the area of constitutional law and human rights. Whitehead's concern for the persecuted and oppressed led him, in 1982, to establish The Rutherford Institute, a nonprofit civil liberties and human rights organization whose international headquarters are located in Charlottesville, Virginia. Whitehead serves as the Institute’s president and spokesperson, in addition to writing a weekly commentary that is posted on The Rutherford Institute’s website (www.rutherford.org), as well being distributed to several hundred newspapers, and hosting a national public service radio campaign. Whitehead's aggressive, pioneering approach to civil liberties issues has earned him numerous accolades, including the Hungarian Medal of Freedom.”

Whitehead also “gained international renown as a result of his role as co-counsel in Paula Jones' sexual harassment lawsuit against President Clinton;” “filed numerous amicus briefs before the U.S. Supreme Court;” and “has also been co-counsel in several landmark Supreme Court cases as well.”

One fact that his Rutherford Institute bio leaves out: John W. Whitehead is also a plagiarist.

Three sentences into his first paragraph, Whitehead cites Jacoby as a source:

“As Jeff Jacoby recently wrote in the Boston Globe (May 26, 2005): “No president can hold power for more than eight years, but the most junior member of the current court - Stephen Breyer - has already been there for 11 years. Two others, John Paul Stevens and Rehnquist, have been on the court for more than 30 years.”

But even though the quotes end there, that’s not the last time that Jacoby’s words and ideas appear in the Constitutional lawyer’s article. Other sources that Whitehead pilfers from – without citing – include portions of a commentary written by two law professors, Yale’s Akhil Reed Amar and Northwestern’s Steven Calabresi of Northwestern, published on August 9th, 2002 in The Washington Post which Jacoby specifically cited; a couple of lines from an August 23rd, 2002 “brothers in law” column at Findlaw.com by Vikram David Amar and Akhil Reed Amar; and long passages from an article (pdf file) written by two law students, James E. DiTullio and John B. Schochet, and published on May 13th, 2004 in the Virginia Law Review entitled “Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-year Terms.”

Whitehead does Jacoby:

Whitehead: “Of course, Hamilton also described the judiciary as “the least dangerous branch” since it exercised no force or will but only judgment.”

Jacoby: “Alexander Hamilton described the judiciary as the ''least dangerous branch," since it had no authority to appropriate funds and no way to enforce its decisions.”

Whitehead: “Lifetime tenure, for instance, vastly increases the stakes in filling each Supreme Court (and lower federal court) vacancy. Senate battles over judicial nominations would not be so bitter if the consequences of losing were not likely to persist for decades. Supreme Court justices are also tempted by the current arrangement to time their resignations for political reasons...”

Jacoby: “…lifetime tenure vastly increases the stakes in filling each Supreme Court (and Court of Appeals) vacancy. Senate battles over judicial nominations would not be so bitter if the consequences of losing weren't likely to persist for decades. Second, high court justices are tempted by the current arrangement to time their resignations for political reasons.”

Jacoby: “Third, as law professors Akhil Reed Amar of Yale and Steven Calabresi of Northwestern wrote in 2002, ''life tenure encourages presidents to nominate young candidates with minimal paper trails and maximal potential to shape the future" -- by passing up more experienced individuals whose resumes might trigger an ideological assault.”

Whitehead: “Moreover, life tenure deprives the judiciary of regular infusions of “new blood,” especially given the fact that judges are living, and thus serving, much longer. The result of this is a decrease in intellectual vigor and awareness of contemporary culture among some judges.”

Jacoby: “And fourth, with justices staying on the court longer than ever, the judiciary is deprived of regular infusions of new blood. Result: a decrease in intellectual vigor and awareness of contemporary culture.”

Whitehead does the Amar “brothers in law”:

Whitehead: “Another would have the Senate insist that all future Court nominees publicly agree to term limits or risk nonconfirmation. While legally unenforceable, such commitments by justices would likely be honored.”

Vikram & Akhil Amar: “The Senate could insist that all future Court nominees publicly agree to term limits, or risk nonconfirmation. While legally unenforceable, such commitments by Justices would likely be honored.”

Whitehead: “The average age at departure for Supreme Court Justices from 1789 to 1970 was 68.5 years. From 1971 to 2000, it was 78.8 years.”

Vikram & Akhil Amar: “The average age at departure for Supreme Court Justices from 1789 to 1970 was 68.5 years; whereas from 1971 to 2000, it was 78.8 years.”

Whitehead does DiTullio and Schochet:

Whitehead: “The role of the modern Supreme Court is much different than originally intended by those who drafted the Constitution. The Court today routinely decides cases of great magnitude. These include school desegregation, state electoral districting schemes and even the outcome of a presidential election.”

DiTullio & Schochet: “This phenomenon is exacerbated by the dynamics and role of the modern Supreme Court. The Court decides cases of great magnitude. It would have been unfathomable to the Framers that the Supreme Court would one day order the desegregation of public schools, strike down almost every state electoral districting scheme in the nation, and serve as the final arbiter in the election of the President of the United States.”

DiTullio & Schochet: “The Supreme Court has also entered what Justice Frankfurter called the “political thicket” with increasing frequency since the beginning of the twentieth century.”

Whitehead: “Problematic consequences have arisen as Justices have grown in power, become more invested in their decisions and inserted themselves in the “culture wars.””

DiTullio & Schochet: “…three primary problems…justices have exercised more power…become more personally invested in their decisions…as the Court has entered the “culture wars”…”

Whitehead: “Arguably, this system will remove the problems of strategic retirements, incentives for young nominees and unfairly distributed appointments.”

DiTullio & Schochet: “This proposed amendment would eliminate the justices’ ability to strategically retire, temper the incentives for presidents to nominate young justices to the Court at the expense of older candidates, and guarantee each president two nominations per term.”

Whitehead: “Alexander Hamilton was the leading proponent of this provision in the Constitution.”

DiTullio & Schochet: “Alexander Hamilton was the principal proponent of this provision…”

Whitehead: “He argued that life tenure was essential to assuring the absolute independence of the judiciary from the influence of the political branches.”

DiTullio & Schochet: “For Hamilton, life tenure was essential to assuring the absolute independence of the judiciary from the influence of the “political” branches.”

Whitehead: “..one that would amend the Constitution to limit Supreme Court Justices to 18-year, non-renewable terms, with one expiring every two years.”

DiTullio & Schochet: “…this Note proposes a constitutional amendment which would limit Supreme Court justices to eighteen-year, nonrenewable terms, with one term expiring every two years.”

Whitehead: “If a Justice left the Court prior to the expiration of his/her term, the President would nominate (and Senate confirm) a “replacement” Justice who would only serve for the remainder of the retiring Justice’s term. Under no circumstances could a Justice - even a “replacement” Justice who only served for a short period of time - be reappointed to the Court.”

DiTullio & Schochet: “If a justice left the Court prior to the expiration of his term, the President would nominate (and the Senate would confirm) a “replacement” justice who would serve only for the remainder of the departing justice’s term. Under no circumstances could a justice—even a “replacement” justice who only served for a short period of time—be reappointed to the Court.”

Whitehead: “Once the Justices’ term expired, each former Justice would be permitted to serve for life on the lower federal court of his choice.”

DiTullio & Schochet: “Once his term on the Court expired, each former justice would be permitted to serve for life on the lower federal court of his choice.”

"Apparently the great and glorious Intelligent Designer failed to outfit Mr. Whitehead, for the long haul anyway, with enough original multiplying fruitfullness of his own. Hence, JWW, it would certainly appear, has been reduced to accessorizing his treatsies with entire sentences plucked from others more bountifully blessed orchards."

....

"Perhaps some charitable Christian order of some variety or another will drop one of those 4000 pound marble obelisks with the ten commandments drilled into the rind on the floor of Whitehead's office. Just as as a reminder. Kind of like a enormous inexorable posty-note from hell."

jeebus...not to slight the other folks at corrente - who are all wonderful, fearless and liberal - but the farmer's posts are transcendental.

Contributors

"Or take this guy, Ron Brynaert, a tenacious (lefty, stand alone) investigator with an instinct for where information and proof and the jugular are. He's a natural: Why isn't he on someone's I-team?" Jay Rosen, June 6, 2005.